- The Ohio legislature on Wednesday passed a bill that shields the names of companies providing lethal injection drugs to the state, the Associated Press reported. The bill now heads to Gov. John Kasich, who's expected to sign it into law.
- The proposal comes 11 months after the state used an experimental combination of drugs to execute convicted murderer and rapist Dennis McGuire, who gasped and snorted for 26 minutes before dying.
- Several states are now relying on experimental, sometimes secret drugs to execute inmates. Besides Ohio, the drugs were widely blamed for botched executions in Arizona and Oklahoma earlier this year.
Critics call Ohio's approach the most extreme yet
The focus of Ohio's new bill is to provide anonymity to the sources of lethal injection drugs. Compounding pharmacies would have to opt in to hide their identities, which would be kept from the public for 20 years.
And while other states do have laws on the books, Ohio's legislation arguably goes further. It would block the state medical board from revoking or suspending the licenses of physicians who testify about Ohio's execution practices. It also keeps the identities of other participants in the execution process secret.
"We're not the first state that is considering secrecy legislation," said Mike Brickner, a senior policy director at the American Civil Liberties Union of Ohio. "But we are looking at ways to make this the most extreme secrecy legislation in the country."
The Ohio State Medical Association objected to this change, saying it statutorily voids parts of the medical ethics code.
Brickner argued that the bill may violate First Amendment rights by making it more difficult to discuss the death penalty with full knowledge of how it's carried out in the state. This is particularly pertinent to media, who will no longer be able to, under the bill, request information about the companies manufacturing and compounding lethal injection drugs.
Brickner said the bill may also violate death row inmates' due process rights. This could be especially true in Ohio, where the execution of convicted murderer and rapist Dennis McGuire with an experimental cocktail of drugs took 26 minutes — making it the longest in the state's history.
"There will be no shortage of lawsuits once this is passed," Brickner said. "We're certainly analyzing the bill and keeping all our options open."
Supporters say anonymity is necessary to protect drug suppliers
John Murphy, executive director of the the Ohio Prosecuting Attorneys Association, which supports the bill, said the changes aren't about making executions more secretive but rather about protecting compounding pharmacies.
"This just protects the identity of the people involved so they don't get harassed, intimidated, or attacked," he said.
Supporters of the bill say the anonymity is necessary to get supplies of the drugs. Compounding pharmacies are reportedly worried, according to the Associated Press, about the harassment — and even death threats — they could face if their identities are made public.
Without fear of harassment, companies might be more willing to provide the combination of drugs Ohio says it prefers: compounded pentobarbital. That cocktail has been used successfully by Texas and Missouri, which shield the identity of their drug sources. But Ohio has been unable to obtain the drug.
But critics say these claims of harassment are unproven and unfounded.
"I think 20 years is too long," Dennis Hetzel, spokesman for the Ohio Newspaper Association, told the Toledo Blade. "I have yet to see any substantive effort to document the concerns we keep hearing about. We keep hearing anecdotally that they won't [supply the drug]. Where's the pharmacy industry saying that?"
Ohio and other states botched executions this year
Several states botched executions involving experimental drugs this year. Here is a list of some examples:
- Dennis McGuire: Ohio inmate McGuire, a convicted murderer and rapist, took 26 minutes to die after the state used a mixture of hydromorphone and midazolam, according to Cincinnati's CityBeat. McGuire gasped and snorted before he died.
- Clayton Lockett: Oklahoma inmate Lockett, a convicted murderer, struggled violently and groaned after the state injected a combination of midazolam, vecuronium bromide, and potassium chloride, the Guardian reported. State officials halted the execution, but Lockett died of a heart attack 43 minutes after the drugs were injected.
- Joseph Wood: Arizona inmate Wood, a convicted murderer, took nearly two hours to die after the state used a mixture of hydromorphone and midazolam, according to the Guardian. Wood, who gasped and gulped before he died, was injected 15 times the amounts called for in the state's execution protocol by the time he was pronounced dead.
Botched executions aren't new. About 7 percent of lethal injections and 3 percent of all executions between 1890 and 2010 were botched, according to Austin Sarat's Gruesome Spectacles. Many of these executions resulted in gruesome displays similar to the executions of McGuire, Lockett, and Wood.
But these latest botched executions have drawn particular criticism due to the experimental nature of the drugs involved. Some states, including Ohio and Oklahoma, have delayed executions as they review their practices.
Drug companies stopped supplying a key lethal injection chemical in 2011
A series of events halted the supply of sodium thiopental, a key ingredient for lethal injections, to the states, leaving state governments without the supply necessary to carry out executions since 2011. That's when the last US supplier of sodium thiopental — a company called Hospira — stopped producing the chemical. Later that year, the European Union announced an export ban on sodium thiopental to pursue the "universal abolition" of the death penalty.
State governments that wanted to continue using the lethal chemicals were left with two options: they could mix legally available drugs themselves, or they could pay compounding pharmacies to do it for them. The latter brings less liability for state officials, making it a more attractive option.
Legal challenges are ongoing
Critics of bills that keep drug sources secret have tried taking their challenges to court, although they haven't been successful so far. The US Supreme Court refused to hear an appeal from a Texas death row inmate asking the state to disclose the source of drugs intended to execute him, the Associated Press reported. Similar challenges failed in Georgia and Louisiana.
Another case in Pennsylvania is pending, although it's using similar arguments as the cases in Texas, Georgia, and Lousiana. Brickner said the ACLU could also mount a legal challenge against Ohio's executions if the state continues to hide its source of drugs.
Beyond the due process and First Amendment concerns, several inmates suffered after they were injected with experimental combinations of drugs. That could open the practice to a legal challenge that the executions are cruel and unusual punishment.
"At the heart of the problem, there's really no good way to kill a person," Brickner said. "Doing something humanely and ending a person's life oftentimes just don't mix."